ITS ALL ABOUT...TIMING! (PHASE TRANSFERS)

This is an extract from mySummer Term 2018/19 'SEN Update' entitled: “TAKING THE CREDIT, WITHOUT DOING THE WORK!”​​​​​​that was released on 3rd May 2019.

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At this time of year, many parents of children with SEN, or young people with SEN themselves often get very anxious and worried.

This is because, in September (just 4 months away – or just 3, if you discount August/the Summer holidays), many children with SEN are due to be starting primary/infant school or transferring from primary/middle school to secondary school.

Also, many young people with SEN are due to be transferring from secondary school to post-16 placements (e.g. colleges, as well as schools), or from post-16 placements to post-18/19 placements. This is also because, if they have not been given their preferred choice of school/placement, then they now start to realise that they only have a very limited time left to do something to, for example, challenge an Education, Health and Care (EHC) Plan (if they have one) through an appeal to the Special Educational Needs and Disability (SEND) Tribunal.The law about EHC plans (quoting the SEND Code of Practice 2015) states as follows:‘Transfer between phases of education9.179An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, such as:· Early years provider to school· Infant school to junior school· Primary school to middle school· Primary school to secondary school, and· Middle school to secondary schoolReviews and amendments must be completed by 15 February in the calendar year of the transfer at the latest for transfers into or between schools. 9.180For young people moving from secondary school to post-16 institutions or apprenticeships, the review and any amendments to the EHC plan (including specifying the post-16 provision/naming the institution) must be completed by 31 March in the calendar year of the transfer. 9.181Where it is proposed that a young person is to transfer from one post-16 institution to another within the following 12 months, the LA must review and amend (where necessary) the young person’s EHC plan at least five months before the transfer takes place in all cases.’ So, for children coming to the end of Year 6 and starting Year 7/secondary school in September 2019, or children who are starting their primary schooling in September 2019, their next placements should have been determined and their EHC Plans finalised by 15 February 2019.This is, theoretically, enough time to give parents the right to appeal to the SEND Tribunal and have their cases heard by the end of the academic year in July 2019.

(Following a 12 week timetable from registration to hearing, with 2 additional weeks set aside at the beginning for registration [after an appeal is lodged] and 2 weeks set aside at the end after the hearing [to produce a written decision]).For young people with SEN who are transferring to post-16/18/19 placements, their next placements should have been determined and their EHC Plans finalised by 31 March 2019.

​This is, again, to allow them the right to appeal to the SEND Tribunal and have their cases heard by the end of the academic year in July 2019. (This is often with their parents supporting them, provided they have 'mental capacity', otherwise it is often their parents who bring the appeal for them).Well, that’s the theory…However, there is an appeal window of 2 months from the date of the issue of the final EHC Plan to bring an appeal (i.e. by 14 April 2019 or 30 May 2019) and there is also a requirement (since the new SEN framework was brought into effect from September 2014) only to be able to appeal against the contents of an EHC plan after they have obtained a Certificate of Mediation before they can lodge an appeal.

They then need to appeal within one month of a certificate being issued following mediation, or the parent or young person being given mediation information.You do not have to be a genius to work out that, if you do not appeal quickly (in relation to secondary transfer and especially in appeals for post-16 provision), then with a 12-week (+4) timetable, the need to get a mediation certificate and the 2-month (potentially +) window to appeal, you are very lucky to get an appeal listed for hearing before the end of the academic year in primary/secondary cases and even more so in post-16/18/19 cases).In previous years, this has unfortunately led to situations sometimes where parents or young people have had their appeals listed for hearing in September (or even October/November), in relation to where they should go to in September.

Unless parents of children/young people agree to (or let them) have an extended summer holiday, are home-educated, or decide to in the meantime go to the school/placement put forward by the Local Authority (LA) then, unless it can be shown clearly that the school/placement that they are appealing against is inappropriate, the LA/their proposed school may then argue that the child/young person is doing well/has settled in and should not be moved.

If this happens, the person bringing the appeal may then end up undermining their own appeal for a different school/placement.To be as fair as possible, I should also say that many LAs also find themselves in difficulties with sometimes no previous notice of a potential dispute until they receive an appeal (with then less time to prepare) and being faced with an increasing number of appeals from parents/young people who wish to challenge a future placement and lodge appeals, sometimes at the last minute, so that the LA often find themselves on the back foot and under pressure of dealing with many appeals at the same time, at the very end of the academic year.I am afraid that both sides can’t win.These issues can lead to a number of difficulties, especially because, as I said in my last SEN Update, the current number of appeals to the Tribunal has risen considerably in the last few years from an average of about 3,500 a year to last year being about 5,500 a year (and this looks to be increasing this year, although we will not know actual figures until next year probably).Fortunately, the Tribunal has recognised these difficulties in recent years and, some years ago, pulled down the (then) 20-week normal timetable to 12 weeks for secondary transfer appeals from registering the appeal to hearing (they tried coming down further to 7 weeks in the first year for post-16 cases, but this proved unsatisfactory).I am also pleased to report that the Tribunal has recently brought on about 20 new Tribunal Judges to help them deal with the ever-increasing workload.And, this year for the first time, the Tribunal has said that they will be willing to hold hearings ‘on the papers’ (i.e. without a hearing in person) in August (which is usually the month when people are away on their summer holidays, so the Tribunal does not usually hold hearings during that time, as people are generally away and not able to come as witnesses to give evidence in person), but only if both parties agree and the LA has already served its response to the appeal.This is all well and good I hear you say, but if we are a parent of a child with SEN/young person with SEN, or a professional doing this work, what do you suggest we do?

Well, over the years, whilst I have noticed an increasing number of parents who come to see me early for help in relation to what they believe will be a forthcoming dispute/appeal about an EHC plan, unfortunately, I am also conscious that I have noticed an increasing number of people only coming to see me at the last minute, who want me to help them as much as I can, even at a late stage (again, to be fair, lawyers who work for LAs also tell me that they only get approached sometimes at the last minute). Obviously, it is always easier for me (and others) to help people when they come to me/others as early as possible (the irony is that it is not actually just about having the appeals heard earlier, but it is often possible to help them avoid an appeal in the first place).

But, unless this may be a position you now realise that you find yourself in next year and therefore still have time to do something, the most important thing I can really say to you here, if you find yourself in a predicament and with your back against the wall, is not to give up hope...

This is because every year, I/others can still help people, even at a late stage, by either taking over their appeal for them (usually before the Further Evidence stage/deadline), or supporting them themselves to bring an appeal, by showing them what to do and helping them ‘tighten up’ their appeal as much as possible.

In fact, this year things are slightly easier (and cheaper to do), because the Tribunal has agreed to hear appeals ‘on the papers’ (i.e. without a hearing) during August, so it may still be possible for a parent/young people to get decisions on their school/placement and where they should go, in time for the start of the new academic year in September 2019 .

(It is more difficult for me to help people if they come to me after a Further Evidence deadline, whose appeal will be dealt with without a personal hearing, because there may be very little I can then do. However, if they are having a hearing in person, then I can still help them prepare for it).The point that I am really trying to make here is that, there is always hope and it is always possible to do something often, but it is extremely important that somebody recognises a problem first and then does something about it as soon as possible.I am afraid it is probably like telling a good joke, it is all about …timing!

With best wishes

Douglas

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